Archive | child pornography

Tuesday, October 11th, 2016

The 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” requires “specific, individualized evidence” of the bargained-for exchange.

Last week, the Second Circuit vacated the sentence in United States v. Bennett, No. 15-0024 (“Opinion”). The Court held that, in order to justify the 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” “the Government must advance specific, individualized evidence that [a defendant] provided access to his collection of child pornography to another user with the expectation that that user would provide similar access to other child-pornography files.” Opinion at 15. In this case, the Court held the 5-level enhancement was justified because the defendant had engaged in the quid pro quo exchange of passwords protecting child pornography files with other users. Despite finding that the enhancement applied, the Circuit vacated the sentence and remanded for resentencing because the District Court (Sullivan, J.) failed properly to calculate the applicable guideline to reflect the fact that, because …

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Categories: child pornography, guideline

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Friday, June 24th, 2016

Conditions of Supervised Release Must Be Reasonably Related To Sentencing Objectives

The Circuit issued decisions in four criminal cases today.

In United States v. Brown, 14-4643, the Court vacated and remanded for resentencing.  The district court had imposed special conditions of supervision, but had not given any explanation for the conditions or stated the relationship between the conditions and any sentencing objective.  But a district court does not have “untrammeled” discretion in imposing special conditions of supervised release, the Circuit explained, and “usual and severe conditions,” like those impinging on a First Amendment right, will be “carefully scrutinize[d].”  The district court “is required to make an individualized assessment when determining whether to impose a special condition of supervised release and to state on the record the reason for imposing it.”  Because the district court failed to do so, and the reason for the special conditions was not “self-evident in the record,” the Circuit vacated the special conditions and remanded …

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Categories: child pornography, supervised release

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Tuesday, June 14th, 2016

How Severe is Too Severe (for Production of Child Porn)?

“Serious nonhomicide crimes may be devastating in their harm[,] but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irreovocability.”  So said the Second Circuit today in United States v. Brown, No. 13-1706-cr (June 14, 2016)  (quoting the Supreme Court decision in Graham v. Flordia, 560 U.S. 48, 69 (2010)), in remanding a 60-year sentence for production of child pornography on procedural grounds that look awfully substantive.  The opinion contains must-use language for advocates at sentencing for a less-than-extreme sentence in any non-homicide case.

The majority opinion (written by J. Pooler with J. Sack signing on) found that the District Court (J. Sharpe, NDNY) may have misunderstood certain facts in imposing a virtual life sentence for photographing and disseminating sexual images of three young girls and possessing thousands of other images of …

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Categories: child pornography, procedural reasonableness, sentencing, substantive reasonableness, Uncategorized

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Thursday, May 12th, 2016

Advising Clients Regarding Sexual Polygraph Exams and the Fifth Amendment in Child Pornography Cases

Earlier this week, in United States v. Von Behren, the Tenth Circuit Court of Appeals held that requiring that a person on supervised release answer questions on a sexual history polygraph that are designed to elicit admissions of criminal conduct violates the Fifth Amendment’s privilege against self-incrimination.  You can read a copy of the opinion here.  Thank you to the folks at the Sentencing Resource Counsel for forwarding the opinion and congratulations to Assistant Federal Defender John T. Carlson who won the case before the Tenth Circuit.

This issue presents itself in many SDNY and EDNY cases, perhaps most frequently in possession of child pornography cases.  If your client is sentenced to a term of supervised release that contains a special condition regarding compliance with a sexual history polygraph, make sure you advise your client to assert his Fifth Amendment right, to do so in writing to his …

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Categories: child pornography, self-incrimination, sex offenses

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Thursday, April 21st, 2016

Second Circuit “Disturb[ed] That District Courts Do Not Routinely Follow” Rule 11

rule 11 meme

Today in United States v. Pattee, the Second Circuit (Calabresi, Lynch, Lohier, CJJ.) found it “disturbing that district courts do not routinely follow the minimal procedures put in place to protect defendants’ rights.”

In accepting a guilty plea to producing, distributing and possessing child pornography, the district court (Geraci, Ch.J.) failed to advise the defendant of “five of the approximately fifteen rights” listed in Federal Rule of Criminal Procedure 11.  The Circuit found this troubling, as the “Court has stated time and again that [w]e have adopted a standard of strict adherence to Rule 11” and that “compliance with Rule 11 is not a difficult task” because “errors can be avoided if a district or magistrate judge has a standard script for accepting guilty pleas. . . .  Yet failures to meet those requirements are a recurring issue.”  The Court further cautioned that “even strict adherence to Rule 11 …

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Categories: child pornography, ineffective assistance of counsel, Rule 11

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Wednesday, April 13th, 2016

EDNY Update: Judge Pohorelsky Finds Adam Walsh Act Mandatory Bail Provision Unconstitutional, Judge DeArcy Hall Reverses Bail Determination

On Friday, in the EDNY, Magistrate Judge Viktor V. Pohorelsky found that the Adam Walsh Amendments to the Bail Reform Act violate the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment.  The case was United States v. Kim, 16-mj-280 (VVP), and the transcript is available here: Kim_16MJ280_Transcript 4.8.16.

For those charged with crimes involving a minor, Adam Walsh requires the nondiscretionary imposition of specific pretrial release conditions, including electronic monitoring and a curfew, depriving defendants of any opportunity to contest whether such conditions are necessary, and denying judges the ability to make individualized determinations as to the least restrictive bail conditions.  In this case, where the defendant is charged with receipt and possession of child pornography, the court found that electronic monitoring was not necessary to assure his appearance or the safety of the community.  Judge Pohorelsky ordered that the …

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Categories: bail, child pornography, due process

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Tuesday, March 29th, 2016

Woe Betide Those Who Park on the Wrong Side of the Street (and those who produce child pornography)


No relevant opinions today; two summary orders.

In United States v. Grady, Syracuse police noticed that Grady’s car was parked in violation of the city’s odd/even street parking rules.  They approached the car, shone their flashlights inside and saw, in plain view, a bag of crack cocaine on Grady’s lap.  A loaded gun was also found in the car.

Assuming the officers’ approach of the car constituted a stop, the Court (Jacobs, Hall, Lynch, CJJ) held there was reasonable suspicion given the car’s being parked on the wrong side of the street.  Though a car isn’t “parked” if it’s stopped only to load or unload goods or passengers, the officers observed no such activity and the Court held they watched the car for long enough — 10 seconds — before deciding to approach.  “The officers were not required to conduct surveillance long enough to ‘rule out the possibility of …

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Categories: car stop, child pornography, expert witnesses, Fourth Amendment, reasonable suspicion, substantive reasonableness

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Sunday, September 9th, 2012

The Thirty Years’ War

United States v. Broxmeyer, No. 10-5283-cr (2d Cir. August 28, 2012) (Jacobs, Winter, Raggi, CJJ)

Former high school athletic coach Todd J. Broxmeyer was originally convicted of five offenses involving child sex abuse and pornography, and received a 40-year sentence. On his first appeal, the circuit found that the evidence was insufficient to support three of the counts, and remanded the case for resentencing. See “Coach Bagged’ posted August 13, 2010.  In this opinion, an unusually bitterly divided panel affirmed the 30-year sentence imposed on the two remaining counts on remand.

The majority began with a long and highly disapproving survey of the totality of the conduct proven at trial – a girls’ field hockey coach, Broxmeyer sexually abused several of his charges over a multi-year period – and Broxmeyer’s sentencing strategy on remand. This included his continuing to dispute all of the allegations against him, disputing the sexual …

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Categories: child pornography, Uncategorized

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Friday, August 10th, 2012

Cache Landing

United States v. Ramos, No. 10-4802-cr (2d Cir. July 2, 2012) (Winter, Raggi, Chin, CJJ)

This long opinion in a child pornography (“cp”) case tackles two interesting issues.


James Ramos was on New York State parole for a sex offense; to secure his release, he agreed to a search condition, to “promptly, fully and truthfully” reply to his PO’s questions, and to “fully” comply with the PO’s instructions.  He also, obviously, had to agree to stay away from “pornographic materials.” After five years, the PO told Ramos that two new conditions, polygraph testing and GPS monitoring, were being added to his supervision. Ramos protested at first, but eventually gave in.

Before his first polygraph examination, Ramos told the examiner that he had viewed forbidden materials, including cp, on his computer several times since his release. He took the test, which was inconclusive, then signed a form admitting what he …

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Categories: child pornography, interstate commerce, self-incrimination, Uncategorized

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Sunday, September 11th, 2011

Porn Free

United States v. Aumais, No. 10-3160-cr (2d Cir. September 8, 2011) (Jacobs, Winter, McLaughlin, CJJ)

In this interesting opinion, the court weighs in on a subject of national controversy: whether a defendant convicted of possessing or receiving child pornography should be ordered to pay restitution to those depicted in the images. On the facts here the court, largely bucking the national trend, concluded that restitution was not appropriate.

This case involves images of a woman who uses the pseudonym Amy. Her uncle abused her for years when she was a child; he photographed the abuse and the images made their way to the internet. The uncle went to prison, but the images are still widely circulated. The effects of this on Amy have been devastating, and far transcend the harm caused by the abuse itself. She is so fearful of being identified in public from one of the images that …

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Categories: causation, child pornography, restitution, Uncategorized

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Sunday, March 6th, 2011

Face Time

United States v. Hotaling, No. 09-3935-cr (2d Cir. February 28, 2011) (Newman, Hall, CJJ, Restani, JCIT)

John Hotaling cropped the faces from non-pornographic pictures of minor females and morphed them onto the heads of nude adult women engaged in sexually explicit conduct, including one in which the woman was handcuffed, shackled and tied to a dresser. He pled guilty to violating 18 U.S.C. §§ 2252A and 2256(8)(A), which together make it a crime to possess images containing child pornography where the image “has been created, adapted or modified to appear that an identifiable minor is engaged in sexually explicit conduct.” The district court sentenced him to 78 months in prison, having included in the Guidelines calculation the enhancement for possessing an image that portrayed sadistic or masochistic conduct. On appeal, the circuit rejected Hotaling’s “as applied” challenge to the statute as well as his challenge to the sentencing enhancement.

The …

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Categories: child pornography, Uncategorized

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